NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

Update: On April 15, 2020, Governor Northam extended Executive Order 53 until May 8, 2020.

On March 23, 2020, Virginia Governor Ralph Northam issued Executive Order 53, which places restrictions on the operation of nonessential retail businesses from 11:59 p.m., Tuesday, March 24, 2020 through 11:59 p.m., Thursday, April 23, 2020.  The Order also prohibits all public and private in-person gatherings of 10 or more people during that same time period and closes all K through 12 schools for the remainder of the 2019-2020 school year. 

During this timeframe, all dining areas in restaurants, food courts, breweries, wineries, farmers markets, and the like within the Commonwealth are ordered closed.  Such establishments may,  however, continue to offer delivery and take-out services. 

Essential retail businesses excluded from the Order’s generally applicable restrictions include:

• Grocery stores, pharmacies, and other retailers that sell food and beverage products or pharmacy products, including dollar stores, and department stores with grocery or pharmacy operations;
• Medical, laboratory, and vision supply retailers;
• Electronic retailers that sell or service cell phones, computers, tablets, and other communications technology;
• Automotive parts, accessories, and tire retailers, as well as automotive repair facilities;
• Home improvement, hardware, building material, and building supply retailers;
• Lawn and garden equipment retailers;
• Beer, wine, and liquor stores;
• Retail functions of gas stations and convenience stores;
• Retail located within healthcare facilities;
• Banks and other financial institutions with retail functions;
• Pet and feed stores;
• Printing and office supply stores; and
• Laundromats and dry cleaners.

All other brick and mortar retail establishments not listed above may continue to operate, but must limit all in-person shopping to no more than 10 patrons per establishment.  If any nonessential retail business cannot adhere to the 10-patron limit with proper social distancing requirements, then it must close.

The Order also mandates the complete closure of recreational and entertainment businesses to the public during the same time period (from the end of the day on Tuesday, March 24, 2020, through Thursday, April 23, 2020), including:

• Theaters, performing arts centers, concert venues, museums, and other indoor entertainment centers;
• Fitness centers, gymnasiums, recreation centers, indoor sports facilities, and indoor exercise facilities;
• Beauty salons, barbershops, spas, massage parlors, tanning salons, tattoo shops, and any other location where personal care or personal grooming services are performed that would not allow compliance with social distancing guidelines to remain six feet apart;
• Racetracks and historic horse racing facilities; and
• Bowling alleys, skating rinks, arcades, amusement parks, trampoline parks, fairs, arts and craft facilities, aquariums, zoos, escape rooms, indoor shooting ranges, public and private social clubs and all other places of indoor public amusement.

All business operations offering professional rather than retail services may remain open, but should utilize teleworking as much as possible.  Where telework is not feasible, businesses offering professional services must adhere to social distancing recommendations and enhanced sanitizing practices on common surfaces, and apply the relevant workplace guidance from state and federal authorities. 

Violations of the Order are punishable as Class 1 misdemeanors.

Virginia employers should remember that all normal employment-related federal and state statutes and regulations continue to apply and require compliance during the COVID-19 pandemic.  For example, employers considering furloughs or layoffs as a result of the COVID-19 crisis must comply with the federal Worker Adjustment and Retraining Notification (WARN) Act, if applicable, and ensure that required notices are issued.  Employers in the Commonwealth should likewise remain mindful of the federal Occupational Safety and Health Act (OSHA) requirements to provide a safe workplace free from serious recognized hazards, as well as wage and hour laws that may come into play when adjusting employee pay in response to the current crisis.  Employers should consult with counsel for guidance in complying with these laws when facing the unique circumstances presented as a result of the pandemic. 

Littler also offers free publicly available resources to assist employers throughout the COVID-19 pandemic, which are available here, and continues to monitor these rapidly changing developments as it assists clients during this difficult time.